Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Thursday, August 19, 2010

UNEMPLOYMENT INSURANCE - WHAT HAPPENS IF EMPLOYER DOES NOT PAY TAXES

Here are more provisions of the Labor Law to be aware of in the case of an Employer's failure to pay UI taxes:

"Sec. 530. Industrial commissioner`s powers.

1. General powers. The commissioner shall administer this article and for such purpose he shall have power to make all rules and regulations and, subject to the regulations of the civil service, to appoint such officers and employees as may be necessary in the administration of this article.

Sec. 560. Terms of coverage.

1. Liability. Any employer shall become liable for contributions under this article if he has paid remuneration of three hundred dollars or more in any calendar quarter, except that liability with respect to persons employed in personal or domestic service in private homes shall be considered separately and an employer shall become liable for contributions with respect to such persons only if he has paid to them remuneration in cash of five hundred dollars or more in any calendar quarter. Such liability for contributions shall commence on the first day of such calendar quarter. An employer who, by operation of law, purchase or otherwise becomes successor to an employer liable for contributions shall become liable for contributions on the day of his succession. This provision shall not affect such successor`s liability as otherwise prescribed by law for unpaid contributions due from his predecessor.

Subd. 1 as amended by L. 1965, Ch. 103 effective January 1, 1966.

2. Hirings by helpers and assistants. Whenever any helper, assistant, or employee of an employer engages any other person in the work which said helper, assistant, or employee is doing for the employer, such employer shall for all purposes hereof be deemed the employer of such other person, whether such person is paid by the said helper, assistant, or employee, or by the employer, provided the employment has been with the knowledge, actual, constructive, or implied, of the employer.

3. Tax exemption in other laws. No exemption from taxation granted under any other law of the state shall be so construed as to apply to the payment of contributions under this article.

4. Federal instrumentalities. (a) In conformity with subsection (b) of section thirty-three hundred five of the federal unemployment tax act, any instrumentality of the United States, except such as are wholly or partially owned by the United States, or exempt from tax imposed by section thirty-three hundred one of said act by virtue of any provision of law, which specifically refers to such section, or the corresponding section of prior law, in granting such exemption, shall be subject to all the provisions of this article, except as provided in section fifty-two hundred forty of the revised statutes of the United States, as amended and modified by subsection (c) of section thirty-three hundred five of said act. If in any year this state shall not be certified under section thirty-three hundred four of said act, any contributions required under this article from any such instrumentality of the United States with respect to such year, including penalty and interest collected with respect thereto, if any, shall be refunded without interest.

(b) In conformity with subsection (c) of section thirty-three hundred five of the federal unemployment tax act, the commissioner is authorized to transmit a copy of any return or report of a national banking association relative to the association`s employees, their remuneration and services, to the comptroller of the currency and to request the said comptroller of the currency to cause an examination of the correctness of such return or report to be made at the time of the next succeeding examination of such association, and thereupon to transmit to the commissioner a complete statement of his findings respecting the accuracy of such returns or reports.

(c) This subdivision applies to national banking associations and any other federal instrumentalities which would be immune from contributions required under this article without authorization by subsection (b) of section thirty-three hundred five of the federal unemployment tax act.

5. Primary liability for contributions. Whenever one employer contracts with a second employer for any work which is part of the first employer`s usual trade, occupation, profession or enterprise, the first employer shall be liable for any contributions otherwise payable by the second employer, based upon wages paid in respect to such work, unless the second employer is free to do business with anyone who may wish to contract with him. Contributions so paid by the first employer on behalf of the second employer shall be deemed paid by the second employer. If the first employer fails to pay, on the date prescribed by the commissioner, contributions due on wages paid by the second employer, the commissioner may collect such deficiency from the second employer."

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/